Awadh Ram v. The State of Madhya Pradesh

Mr. Abhay Tiwari and Mrs. Savita Tiwari, Advocates for the appeUants. Mr. Sudhir Bajpai, Dy. Govt. Advocate for the State. CrAppls. No. 1416:1417:1419: 1420; 1421:1422:1423; 1424: 1425 & 1426 of 1997.—. ; JUDGMENT (22.08.2013) Following judgment of the Court was delivered by Sunil Kuinar Sinha. J. (1) These appeals are directed against the judginent dated 5th of June, 1997 passed in Sessions Trial No. 375/92 by the Fourth Additional Sessions Judge, Bilaspur. By impugned judgment, the appeUants were convicted and sentenced in the following manner with a direction to run the sentences concurrenfly:- Conviction Sentence u/Ss 302/149IPC (in 4 counts) u/Ss 307/149IPC (in 2 coiints) u/Ss 324/149IPC (in 3 counts) u/Ss 323/149IPC (in 2 counts) Life imprisonment and fmeofRs.5,000/- for 7 years and R.I. fine of Rs.3,000/- with default sentence of S.I. for 1 year for 3 years and R.I. fine of Rs.2,000/- with default sentence of S.I. for 6 months R.I. for 1 year and fine of Rs.1,000/- with default sentence of 8.1. for 3 months (2) The facts, briefly stated, are as iinder:-

2.1 Eleven (11) accused persons (A-l to A-11) were tried for the offences punishable u/Ss 302/149 (in 4 / 4 . Cr.AppIs.No. 1416; 1417:1419: 1420: 1421: 1422: 1423: 1424: 1425 & 1426 of 19^7 ' counts), 307/149 (in 2 counts), 324/149 (in 3 counts) & 323/149 IPC (in 2 counts). The allegations are that on 8.6.1992 at about 11.45 a.m., they fonned an unlawful assembly and in furtherance of fhe conunon object of the said asseinbly committed raurder of 4 deceased persons namely- Adhindas, Fatte, Rameshwar and Mohani, attempted to the lives ofPadum (PW-15) 85 Dilip Kuinar (PW-8), caused hurt by dangerous weapons to 85 Roopchand Satrughan (PW-14), Mani Ram (PW-4) (PW-25) and caused simple hurt to Moolchandra (PW-6) & Resham (PW-7).

2.2 Village- Dayalpur and Bandhwa are adjacently situated. There was parti-bandi in these villages. One party was belonging to Kejaha Satnami and the other party was belonging to Adhindas. On 8.6.1992 at about 9.30 a.m., Kejaha Satnaini, father of Satrughan (A-9) and Lakhan (A-10), was murdered and an offence was registered. An other offence for cominitting mischief by fire was also registered. For investigation of the said offences, a police party, coinprising 8.1., Sanjay Tiwari (FW-21 - S.H.O.), A.S.I., Chotelal Pandey (PW-20) and Constable, Virendra Kumar (PW-24), had reached to vUlage Dayalpur and investigation was being conducted. The police party was interrogating the deceased and injured persons of this case by camping near Jaitkham.

2.3 The allegations are that the accused persons, who were belonging to the party of deceased- Kejaha, gathered near his dead body, put Tika on their forehead by blood of deceased- Kejaha and swom that they shall take revenge {saying that "^T W ^qW ^T ^ ^f ^f ") and shall commit murder of the persons belonging to the Y Cr.Appls. No. 1416; 1417:1419; 1420: 1421:1422;1423:_1424;1425 & 1426_ofl9 attacked Jaitkham and party of Adhindas (deceased person). At about 11.45 a.m., the accused persons (A-l to A-l 1), all of a sudden, appeard near coniplainant party who were present wifh the police. The accused persons were armed with lathi and tabbal ete. They surrounded the persons of the coinplainant party and started assaulting them. Four (4) persons of the coraplainant party namely- Adhindas, Fatte, Rameshwar and Mohani sustained multiple serious injuries and succumbed to those injuries. Other persons present there namely - Padum (PW-15), Dilip Kumar (PW-8), Satmghan (PW-14), Mani Ram (PW-4), Roopchand (PW- 25), Moolchandra (PW-6) and Resham (PW-7) also sustained multiple injuries. When the incident was going on, S.I., Sanjay Tiwan (PW-21) and two other poUce officers, A.S.I., Chotelal Pandey (PW-20), and Constable, Virendra Kumar (PW-24) tried to intervene, but the accused persons did not hear them. The persons of police party fired many rounds in the air from their services revolver to stop the accused persons and to prevent the incident, but the accused persons attacked the police party also. They assaulted A.S.I., Chotelal Pandey (PW-20) by tabbal who had sustained injury. Constable, Virendra Kumar (PW-24) had also sustained injuries. They also attacked over S.I., Sanjay Tiwari (PW-21) and somehow their lives were saved. For attempting to the lives of above police personnels, a separate ofFence u/Ss 148, 307/149 and 333/149 IPC was also registered against the accused persons which becanie the subject matter of Sessions Trial No. 49/93 in which they were convicted by the Sessions Court. Cr.Appls.No. 1416: 1417; 1419; 1420: 1421:1422; 1423; H24; 1425 & 1426 of 1997 ^ (Ex.-P/52),

2.4 S.I., Sanjay Tiwari (PW-21) iminediately recorded on which, First Dehatinalishi Infonnation Report (F.I.R. - Ex.-P/51) was registered. Notices (Ex.-P/24, P/26, P/28 85 P/30) to the Panchas were issued and inquest(s) (Ex.-P/25, P/27, P/29 8s P/31) were prepared and the dead bodies were sent for exam.inations were post-mortera. The postmortem. conducted by Dr. N.S. Chandel (PW-2). He noticed following injuries on the dead bodies of the deceased persons:- 2.4.1 Deceased-Mohani: (i) Incised wound of 6 x 3 cm x bone deep on the right scapular region, scapula was brokcn into 3 pieces; (ii) Contusion of 10 x 4 cm on the lower right portion of the back; Incised wound of 6 x 3 cm x bone deep on the (iii) occipital region having fracture of underlying bone; (iv) Lacerated wound of 3.5 x 2 cm x bone deep on the right parietal region; Lacerated wound of 10 x 3 cm x bone deep on (v) the right occipito-parietal region, underlying occipital bone was broken into several pieces, brain matter had come out; & (vi) Multiple wounds of teeth-bite (5 in number) on the upper portion of left foreann. On intemal examination, it was found that there were niultiple fractures over occipital and parietal bones. Brain ineinbrane has ruptured; brain matter has conie out, many blood clots were present on right and ^ \. Cr.Appls. No. 1416: 1417:1419: 1420;1421:1422;1423:1424: 1425 & 1426 of 1997^0" left occipital region. According to him injury no. (i) 85 (iii) were caused by sharp edged weapons and other injuries were caused by hard and rough weapons and teeth-bite. The injuries were ante-mortem and sufficient to cause death in ordinary course of nature. The cause of death was injuries to the skull and bram and fhe death was hoinicidal in nature. His postinortein report is Ex.-P/6.

2.4.2 Deceased- Raineshwar : (i) (u) Lacerated wound of 6 x 4 cra x bone deep on the left occipital region; Incised wound of 5 x 3 cin x bone deep on the right parietal region, underlying bone was the brain inatter broken into inany pieces, has come out; (ui) Lacerated wound of3x 2 x 2 cm on the left parietal region; (iv) Lobe of right ear-pinna was completely cut; (v) There was swelling of 10 x 8 cin around the right eye, the eye was blackish; (vi) Abrasion of 6 x 5 cm on the right portion of back;8s (vii) Abrasion of 10 x 1 cm on the right thigh. On intemal examination, it was found that blood clots were present on right parietal and occipital regions; there were inultiple fractures on right parietal and occipital bones; some pieces of bones have pierced into brain tissue; right parietal and occipital lobes of the brain were ruptured. All the injuries were ante-mortem. Injiu-y no. (i), (iii), (iv), (v), (vi) 85 (vu) were caused by hard and rough object and injury no. (ii) was caused by sharp edged weapon. The cause of death was injuiy to the Cr.ApDls.No. 1416:1417:1419:1420: 1421:1422; 1423:1424:1425 & 1426ofl997/^ 10 skuU and brain and death was homicidal in nature. His postinortein report is Ex.-P/7.

2.4.3 (i) Deceased- Adhindas : SwelUng of 6 x 4 cm on the right portion of forehead, right eye blackish; SwelUng of 8 x 3 cin on the right forearm; (ii) (iii) Swelling of 5.5 x 2 cm on the left foreann; (iv) (v) Swelling of 12 x 2 cm on the lower portion of right leg; Swelling of 16 x 2 cra on the right portion of chest; (vi) Swelling on the right portion of chest at the position of 3rd, 4th, 5th 85 6th ribs, on pressing it was appearing with the ribs were broken; (vii) Lacerated wound of5x 2 x 2 cm near left eye- brow; (viii) Left ear-pinna was torn; 85 (ix) Lacerated wound of4x 2 x 2 cm on the left occipital region. On internal exainination, blood clots were found on temporal parietal and occipital regions, brain meinbrane was reddish, blood clots were found over the brain membrane; there were fractures over 3rd & 6th ribs; a piece of rib has broken and pierced into left lung; thoracic cavity was full of blood; trachea was also full of blood. AU the injuries were ante-raortein caused by hard and rough object. They were siifficient to cause death in ordinary course of nature. The cause of death was injuries to the brain and lung and the death was homicidal in nature. His posfa-nortem report is Ex.-P/S. \ Cr.Appls.No. 1416:1417; 1419; 1420: 1421:1422:1423:1424; 1425 & 1426ofl99'fy^j /•' 11

2.4.4 Deceased- Fatte : (i) Swelling over the right forearm. It was appearing that there were fractures over the bones; (ii) Abrasion of 12 x 2 cin on the left portion of back; (iii) Left ear-pinna was tom, the ear passage was fuU of blood; (iv) Incised wound of 4.5 x 3 cm x bone deep on the occipital region, there was fracture on the underlying bone; 8s (v) Incised wounds of 8 x 3 cm x bone deep on the left parietal region, there was fracture on the underlying bone. On intemal exaraination, it was found that there was sub-dural haemorrhage in the cerebral region; there were fractures over the right parietal and occipital bones; the injuries were ante-inortem.; injury no. (i), (ii) 8s (iii) were caused by hard and blunt object and rnjury (iv) & (v) were caused by sharp edged object. These no. to cause death in ordinary injuries were sufEcient course of nature. The cause of death was injury to the skuU and brain and the death was homicidal in nature. His postmortem report is Ex.-P/9.

2.5 Injured persons were also sent for their medical examinations. Following are the injuries sustained by the injiired persons:- Cr.Aools. No. 1416: 1417:1419: 1420:1421;1422;1423;1424; 1425 & 1426 \p/ 12

2.5.1 (i) Injured-DUip (PW-81; Incised wound ofll x 3 x3 cm over back part of right shoulder joint, margins clean cut and regular. The above injury was caused by hard and sharp cutting object. His MLC report is Ex.-P/S. He was advised for X-ray examination. On X-ray examination, it was found fhat there was corresponding fracture on acroinian process. His X-ray report is Ex.-P/61. He was admitted in the hospital from 9.6.1992 and was discharged on 21.6.1992. Discharge ticket is Ex.-P/63.

2.5.2 Injured- Padum (PW-151: (i) Incised wound of 5 x VsxVs cm on teinporo- parietal area; Swelling and tendemess over left foreann; swelling and tendemess over (ii) (iii) Pain, forearm, (iv) Abrasion over right side of elbow; 85 (v) Abrasions over both sides of right knee. On X-ray examination, it was found that there was a fracture over his left ulna. X-ray report is Ex.-P/62.

2.5.3 (i) Iniured-Satruehan (PW-141: Incised woitnd of 15x 5 x5 cm on the left portion of back and back portion of left forearm, margins regular, red in colour. It was simple injury caused by sharp edged weapon. His MLC report is Ex.-P/1.

2.5.4 (i) Injured- Mani Ram (PW-41: Incised wound of5 x 8 x8 cm (bone deep) on the left portioh of skull, margins regular, red in colour; 13 Cr.ADpls.No. 1416:1417:1419; 1420: 1421:1422:1423; 1424:1425 & 1426ofl99r/w (ii) Abrasion of 3 x 1 cin on the left patella, read in colour; (iii) Incised wound of 1 x 5x5 cra on the upper pordon of left leg, red in colour; SE (iv) Abrasion of .8 x .8 cni on the iniddle of the nose, red in colour. Injury no. (i) 8s (iii) were caused by sharp edged weapon and uijury no. (ii) and (iv) were caused by hard and rough object. AU the injuries were siinple injuries. His MLC report is Ex.-P/2.

2.5.5 (i) Injured- Roopchand (PW-251: Incised wound on the back portion of left shoulder joint, margins regular, red in colour; blood was coming out. The. injury was caused by sharp edged weapon. X- ray examination was advised. Cut injuries were found over superior aspect of left shoulder and articular surface of head of humorous. He was admitted in the from 9.6.1992 to 21.7.1992. Surgeiy was hospital performed. Discharge ticket is Ex.-P/64 and bed-head- ticket is Ex.-P/65.

2.5.6 Injured- Moolchandra (PW-6): (i) Lacerated wound of3x .8 x .5 cm on the left portion of skull, margins regular, colour. red in It was simple injury caused by hard and rough object. His MLC report is Ex.-P/3.

2.5.7 Injured- ReshamlPW-71: (i) Two bruises of 7 x 2.7 cm and 5 x 2.5 cm on the back portion of right side of chest; & Cr.Appls.No. 1416; 1417:1419:1420; 1421; 1422; 1423; 1424:1425 & 1426 of 1997 14 /Q5 /" (ii) Abrasion of 3.5 x 2 cra on the back portion of right forearm, red in colour. Both injuries were siinple injuries caused by hard and rough object. His MLC report is Ex.-P/4.

2.6 The case of the prosecution was based on 16 eye- witnesses, including the above rnjured witnesses as also the police personnels who were also injured. The leamed Sessions Judge relied on the testimonies of these witnesses and held that it was proved beyond all reasonable doubts that the accused persons had fonned an unlawful assembly and had conrmitted the above ofFences in furtherance of the common objects of the said asserably. The accused persons, convicted and sentenced as above. thus, were (3) Accused- Babudas (A-3) had also ffled a separate appeal. However, he died during the pendency of the appeal, therefore, his appeal has abated. Thus, the remaming 10 accused persons are before us. (4) Mr. Abhay Tiwari, leamed coiinsel appearing on behalf of the appeUants, has argued that formation of an unlawful assembly and the appellants being members thereof was not proved; common object(s) were also not proved; the witnesses were not reliable; and the appeUants have been falsely iinplicated. Altematively, he argued that it was a case of free- fight. Complamant party was aggressor and the accused persons inflicted injuries in right of private defence. J Cr.Appls. No. 1416: 1417: 1419: 1420:1421:1422:1423:1424: 1425 & 1426 of 1997 / \^ \M/ / On the other hand, Mr. Sudhir Bajpai, leamed Dy. Govt. Advocate appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard counsel for the parties. (7) Let us firstly remind the principles relating to "Unlawful Assembly" & "Coimnon Object(s)". (8) What has to be proved against a person who is alleged to be a meinber of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any asserably an unlawful assembly, intentionally joins that asseinbly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the conunon objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to detennine in such a case is whefher the assembly consisted of five or inore persons and whether the said persons entertained one or more of the conunon objects as specified J Cr.Apols.No. 1416: 1417: 1419; 1420; 1421:1422; 1423:1424; 1425_&_1426ofl997" 16 /a.o- by Section 141. While detemiining this question, it becoines relevant to consider whether the assembly consisted of soine persons who were merely passive witiiesses and had joined the asseinbly as a matter of idle curiosity without intending to entertain the common object of the assembly. The two ingredients of Section 149 are (i) commission of offence by rnembers of unlawfal assembly; and (ii) such offence inust be in prosecution of coinmon object of that asseinbly, or must be such as ineinbers of that assembly knew it to be likely to be comraitted. For detennining coinmon object the conduct of each member of unlawful assembly before and at the time of attack is relevant consideration; object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, amis carried by ineinbers, and behaviour of members at or near scene of incident. The cominon object does not require a prior concert and a common ineeting of ininds before attack. It is enough if each member has same object and all act in assenibly to achieve that object. Comraon object has to be ascertamed from acts and language of members and froin consideration of all surrounding circumstances. For detennination of common object, conduct of each member of unlawful assembly, before and at the time of attack and motive of criine are sorae of the relevant considerations. The time of \ Cr.ApDls. No. 1416:1417: 1419: 1420:1421:1422:1423:1424: 1425 & 1426 ^ 17 fonning unlawful intent is not material because it is possible that an asseinbly, which is lawful to begin with, subsequently becomes unlawful. Lastly, is not even expected of prosecution to assign particular or independent roles played by each accused once it is proved they were members of unlawful assembly and had assaulted deceased resulting in death (Vide: Mdsalti -Vs- State of U.P.. AIR 1965 SC 202, Pandurana Chandrakant Mhatre and ^thers^-Vs- iState of Mdharcishtra, {2009] 10 SCC 773; Sikandar Sfn.gh & Qrs. -Vs- State of Bihar. 2010 AER SCW 4426 and Dhamidhar^ -Vs- State of Uttar Pradesh and Others & other connected appeals. 12010} 7 SCC 759). (9) Now we shall examine the case of the appellants. (10) The first set of evidence was of injured eye-witnesses namely- Padum (PW-15), DiUp Kumar (PW-8), Satmghan (PW-14), Mani Ram (PW-4), Roopchand (PW-25), Moolchandra (PW-6) and Resham (PW-7). (11) Padum (PW-15) deposed that "Accused- Awadh Ram (A- 1) had committed mischief by fire in the Pairawat (paddy- straw) of deceased- Fatte. A report was lodged in police station Lalpur. On this report, the police party had visited their viUage. On the date of the present incident, the police Cr.Aools. No. 1416:1417:1419: 1420:1421:1422:1423:1424: 1425 &J426 ofl997 18 party including Thanedar Tiwari (PW-21) had called theni near Jaitkham. Rameshwar, Fatte, Mohani & Adhindas (4 deceased persons), Bawachha, Roopchand (PW-25), Dilip (PW-8), Mani Ram (PW-4), Yashkumar, he himself and maiiy other (about 16 persons) were present there. At that time, Awadh Ram (A-l) and Satprasad (A-7) came there. Satprasad (A-7) was holding a tabbal and Awadh Ram (A-l) was holding a lathi. They attacked over thein. Other accused persons belonging to their party namely- Khilawan (A-6), Phoolchand (A-8), Ramsahayak (A-5), Bhanu (A-2), Babudas (A-3), Bhagrai (A-11), Bhagbali (A-4), Lakhan (A-10) and Satrughan (A-9) also came there with lathi. Firstly Awadh Ram (A-l) assaulted Moolchandra (PW-6) by lathi. Moolchandra fell down. Thereafter Awadh Ram (A-l) assaulted his father, Mohani (deceased), by lathi. Satprasad (A-7) assaulted him by tabbal and Bhanu (A-2) assaulted him by lathi. His father fell down receiving their injuries. Then Satrughan (A-9), Khilawan (A-6), Bhanu (A-2) and other accused persons attacked over Fatte (deceased). He also fell down on account of assault. Raraeshwar (deceased) was also attacked by Phoolchand (A-8), Ramsahayak (A-5), Babudas (A-3), Satrughan (A-9) etc. by lathi. He had also fell down after receiving the injuries. Adhindas (deceased) was assaulted by Babudas (A-3), Satprasad (A-7), KhUawan (A-6), Cr.Aoris. No. 1416:1417:1419: 1420:1421:1422:1423:1424; 1425_& 1426 of 1997 19 r^) Ramsahayak (A-5) by lathi and tabbal. He also fell down on account of injuries sustained by him. After assaulting the above deceased persons, the accused persons had assaulted him and they had also assaulted Dilip (PW-8), Roopchand (PW-25) and Adhindas (deceased). While the accused persons were assaulting them, the poUce officers present there, fired in the air. Mohani, Adhindas, Raineshwar and Fatte .(4 deceased persons) had died instantaneously. When he wanted to run away, he was stopped by the police officers". Padura (PW-15) was formally cross-examined by the defence. Only 1 question was asked to him which he (Padum) adnaitted that on the same day Kejaha was also murdered and he was an accused in the said case. (12) The evidence of Padiun (PW-15) was duly corroborated by the evidence of other mjured witnesses namely- Dilip Kumar (PW-8), Safanghan (PW-14), Mani Ram (PW-4), Roopchand (PW-25), Moolchandra (PW-6) and Resham (PW- 7), who deposed in siinilar fashion. Nothing inaterial could be elicited in the cross examinations of these witnesses, on which, either their testimonies may be discarded or it may be said that they were falsely iinplicating the accused persons in the said incident. These witnesses were injured witnesses, therefore, their presence at the place of occurrence cannot be doubted. They have given details regarding manner of assault \ > Cr.ApDls.No. 1416:1417:1419:1420: 1421:1422:1423:1424: 1425 & 1426 of 1997 20 ^ given to the deceased and injured persons. They have also taken specific naines of the accused persons, who, in fact, had assaulted thein as also the deceased persons. Thus their evidence assume unportance (Vide: Balrafe Alias Trimbak Vs- State of Maharashtra, (2010) 6 SCC 673 and Abdul Sa.yeed -Vs- State ofMadhi/a Prddesh & other connected matters, (2010) 10 SCC 259}. Mr. Tiwari also could not point out any infimuly in the evidence of these witnesses. (13) Their evidence was further corroborated by the postinortein reports of 4 deceased persons as also MLC reports of these witnesses and the evidence of Dr. Anil Kumar Gupta (PW-1) and Dr. N.S. Chandel (PW-2).who found above injuries of their persons as also on the dead bodies of the deceased persons. (14) Not only this, their evidence was also corroborated by the evidence of 3 police ofGcers, which was the second set of eye-witnesses, which we shall now discuss. (15) 8.1., Sanjay Tiwari (PW-21) has deposed that on the fateful day, he was present in the vUlage for investigation of the mischief case. He was told that persons belonging to complainant party of this case have committed murder of Kejaha Satnami in village Bandhwa. He sent Constable- r Cr.Appls. No. 1416: 1417: 1419: 1420:1421:1422; 1423:1424: 1425 & 1426 of 1997 (^ 21 Rampratap to village Bandhwa. Along with the remaming staffs, he came to village Dayalpur. Bhanu (A-2) S/o Kejaha niet hina near Jaitkham. Bhanu (A-2) lodged a report of death of his father which he recorded in Dehatinalishi Then, he went to the house of Adhindas and Melaram, where he met Adhindas, Moolchandra, Fatte, Rameshwar, Mohani, Roopchand, Dilip ete. He called thera near Jaitkham. for interrogation. When he was interrogating them, accused persons namely- Awadh Ram (A-l) and Satprasad (A-7) came there froin the front side and other accused persons naniely- Bhanu (A-2), Ramsahayak (A-5), Babudas (A-3), Satrughan (A-9), Phoolchand (A-8), Bhagrai (A-ll), Bhagbali (A-4) etc. came from other side. They were anned with lathi and tabbal. They attacked over Moolchandra (PW-6) etc. When he tried to intervene, they also attacked over police party. The police persons accompanying hun sustained injuries. After attack over the above persons when they were trying to assault Ramadhar, he and A.S.I. Pandey fired 2 rounds in the air from. their service revolver. Wlien the accused persons did not stop, they again fired 2 rounds in the au-. (16) SimUar is the evidence of A.S.I., Chotelal Pandey (PW- 20) and Constable, Virendra Kumar (PW-24). -\ ^ CrAppls. No. 1416:1417: 1419:1420:1421:1422:1423: 1424:1425 & 1426 of 1997 (^)^) 22 These police witnesses were also put to cross- examination by the defence, but nothing material could be brought in their cross-exainmations. We note that for the mjuries sustained by the poUce persons a separate offence was registered against the accused persons which became the subject inatter of Sessions Trial No. 49/93 in which also the accused persons were convicted by fhe Sessions Court. (18) The 3rd set ofevidence was ofthe eye-witnesses who did not receive any injury and witonessed fhe incident from a very short distance. They were Champa Bai (PW-10), Ramadhar Chakradhari (PW-5), LUva (PW-9) and Santram Kotwar (PW- 12). (19) Champa Bai (PW-10) deposed that "On the fateful day, she was sitting near the place of incident. Adhindas, Fatte, Rameshwar and Mohani (4 deceased persons) were present there. The accused persons had attacked over them by lathi and tabbal. Accused- Awadh Ram (A-l) and Satprasad (A-7) had open the assault and thereafter other accused had also assaulted. Police personnels were also present there. They were also assaulted by the accused persons. She had seen the incident from a very short distance . Champa Bai (PW-10) is wife of Moolchandra (PW-6). In cross-examination, she admitted that Moolchandra (PW-6) was an accused in case of / CrAonls. No. 1416:1417:1419: 1420:1421:1422:1423:1424: 1425 & 1426 of 1997't^/ 23 murder of Kejaha Satnami. Her evidence was corroborated by the evidence of Ramadhar Chakradhari (PW-5), Lilva (PW-9) and Santram Kotwar (PW-12). (20) In appreciation of the entire evidence on record, we fiiid there was a parti-bandi in these villages (village- Dayalpur and Bandhwa). The accused persons were inembers of the party belonging to Kejaha Satnami (who had earlier died) and the deceased(s) and injured persons were raembers of the party belonging to Adhindas (deceased). In the moming at about 9.30 a.na. Kejaha Satnami was niurdered and ui retaliation thereof, the accused persons attacked over the deceased(s) and injured persons at about 11.45 a.m. when they were called for interrogation by the police near Jaitkham of village Dayalpur. Accused persons were armed with lathi and tabbal. They were 11 in number. They, all of a sudden, reached to the place of occurrence and attacked over the persons of deceased(s) party by the above deadly weapons and 4 persons belonging to deceased(s) party were inurdered and 7 persons were injured. The witnesses have taken the names of all the accused persons. When the police party toned to intervene, the accused persons had attacked over the members of the police party, who also sustained injuries. The police party had to fire many rounds in fhe air, but even after v that the accused persons did not stop the assault and caused Cr.Aopls.No. 1416:1417:1419:1420: 1421; 1422:1423:1424:1425 & 1426ofl997/"~"~N, "i^ 24 above injuries to the injured and the deceased persons. The above conduct of the accused persons would show that they were the ineinbers of unlawful assenibly and they had conunitted inurdered of 4 deceased persons and caused injuries to 7 injured persons in fuirtherance of the common object(s) of the said asserably. (21) Mr. Tiwari has argued that it was a case of free-fight. The above argument cannot be accepted in view of the fact that none of the accused persons sustained any injury in the said incident. It was tried to canvass that as the complainant party of this case had attacked over Kejaha Satiiami (deceased), the accused party had also attacked over them in right of private defence. The above argument, in light of the prevaiUng circumstances, cannot be accepted because both the incidents took place at two different places and there was a long time gap. The first incident took place in village Bandhwa at about 9.30 a.m., whereas, the present incident took place in village Dayalpur at about 11.45 a.in. It appears that after the Grst incident, fhe accused persons, with a view to take revenge, formed an unlawful assembly, armed theinselves with deadly weapons and thereafter attacked over the persons belonging to the deceased(s) party in a planned manner which was in furtherance oftheir common object(s). / Cr.Aopls.No. 1416:1417:1419:1420:1421: 1422:1423:1424:1425 & 1426 ot 1997/1 25 (22) We are of the view that the leamed Sessions Judge was fully justified in convicting the accused persons under the aforenaentioned Sections ofIPC. (23) For the foregoing reasons, we do not find any substance in these appeals. The appeals are liable to be disinissed and are hereby dismissed. Sd/- SunU Kumar Sinha Judge • Sd/- Radhe Sliyam Sharma Judge Cr-Appls. No. 1416:1417: 1419; 1420:1421;1422:1423:1424; 1425 & 1426 of 199 26 HEADLINE Principles relating to fonnation of Unlawful Assembly and Comnion Object - Discussed. f^lR^ uPTR' ^ ^WW dc;^^ ^ WrRRT Rl^lil - f^RT | Sd/- (R.K. Vatti) Private Secretary

Mr. Abhay Tiwari and Mrs. Savita Tiwari, Advocates for the appeUants. Mr. Sudhir Bajpai, Dy. Govt. Advocate for the State. CrAppls. No. 1416:1417:1419: 1420; 1421:1422:1423; 1424: 1425 & 1426 of 1997.—. ; JUDGMENT (22.08.2013) Following judgment of the Court was delivered by Sunil Kuinar Sinha. J. (1) These appeals are directed against the judginent dated 5th of June, 1997 passed in Sessions Trial No. 375/92 by the Fourth Additional Sessions Judge, Bilaspur. By impugned judgment, the appeUants were convicted and sentenced in the following manner with a direction to run the sentences concurrenfly:- Conviction Sentence u/Ss 302/149IPC (in 4 counts) u/Ss 307/149IPC (in 2 coiints) u/Ss 324/149IPC (in 3 counts) u/Ss 323/149IPC (in 2 counts) Life imprisonment and fmeofRs.5,000/- for 7 years and R.I. fine of Rs.3,000/- with default sentence of S.I. for 1 year for 3 years and R.I. fine of Rs.2,000/- with default sentence of S.I. for 6 months R.I. for 1 year and fine of Rs.1,000/- with default sentence of 8.1. for 3 months (2) The facts, briefly stated, are as iinder:-

2.1 Eleven (11) accused persons (A-l to A-11) were tried for the offences punishable u/Ss 302/149 (in 4 / 4 . Cr.AppIs.No. 1416; 1417:1419: 1420: 1421: 1422: 1423: 1424: 1425 & 1426 of 19^7 ' counts), 307/149 (in 2 counts), 324/149 (in 3 counts) & 323/149 IPC (in 2 counts). The allegations are that on 8.6.1992 at about 11.45 a.m., they fonned an unlawful assembly and in furtherance of fhe conunon object of the said asseinbly committed raurder of 4 deceased persons namely- Adhindas, Fatte, Rameshwar and Mohani, attempted to the lives ofPadum (PW-15) 85 Dilip Kuinar (PW-8), caused hurt by dangerous weapons to 85 Roopchand Satrughan (PW-14), Mani Ram (PW-4) (PW-25) and caused simple hurt to Moolchandra (PW-6) & Resham (PW-7).

2.2 Village- Dayalpur and Bandhwa are adjacently situated. There was parti-bandi in these villages. One party was belonging to Kejaha Satnami and the other party was belonging to Adhindas. On 8.6.1992 at about 9.30 a.m., Kejaha Satnaini, father of Satrughan (A-9) and Lakhan (A-10), was murdered and an offence was registered. An other offence for cominitting mischief by fire was also registered. For investigation of the said offences, a police party, coinprising 8.1., Sanjay Tiwari (FW-21 - S.H.O.), A.S.I., Chotelal Pandey (PW-20) and Constable, Virendra Kumar (PW-24), had reached to vUlage Dayalpur and investigation was being conducted. The police party was interrogating the deceased and injured persons of this case by camping near Jaitkham.

2.3 The allegations are that the accused persons, who were belonging to the party of deceased- Kejaha, gathered near his dead body, put Tika on their forehead by blood of deceased- Kejaha and swom that they shall take revenge {saying that "^T W ^qW ^T ^ ^f ^f ") and shall commit murder of the persons belonging to the Y Cr.Appls. No. 1416; 1417:1419; 1420: 1421:1422;1423:_1424;1425 & 1426_ofl9 attacked Jaitkham and party of Adhindas (deceased person). At about 11.45 a.m., the accused persons (A-l to A-l 1), all of a sudden, appeard near coniplainant party who were present wifh the police. The accused persons were armed with lathi and tabbal ete. They surrounded the persons of the coinplainant party and started assaulting them. Four (4) persons of the coraplainant party namely- Adhindas, Fatte, Rameshwar and Mohani sustained multiple serious injuries and succumbed to those injuries. Other persons present there namely - Padum (PW-15), Dilip Kumar (PW-8), Satmghan (PW-14), Mani Ram (PW-4), Roopchand (PW- 25), Moolchandra (PW-6) and Resham (PW-7) also sustained multiple injuries. When the incident was going on, S.I., Sanjay Tiwan (PW-21) and two other poUce officers, A.S.I., Chotelal Pandey (PW-20), and Constable, Virendra Kumar (PW-24) tried to intervene, but the accused persons did not hear them. The persons of police party fired many rounds in the air from their services revolver to stop the accused persons and to prevent the incident, but the accused persons attacked the police party also. They assaulted A.S.I., Chotelal Pandey (PW-20) by tabbal who had sustained injury. Constable, Virendra Kumar (PW-24) had also sustained injuries. They also attacked over S.I., Sanjay Tiwari (PW-21) and somehow their lives were saved. For attempting to the lives of above police personnels, a separate ofFence u/Ss 148, 307/149 and 333/149 IPC was also registered against the accused persons which becanie the subject matter of Sessions Trial No. 49/93 in which they were convicted by the Sessions Court. Cr.Appls.No. 1416: 1417; 1419; 1420: 1421:1422; 1423; H24; 1425 & 1426 of 1997 ^ (Ex.-P/52),

2.4 S.I., Sanjay Tiwari (PW-21) iminediately recorded on which, First Dehatinalishi Infonnation Report (F.I.R. - Ex.-P/51) was registered. Notices (Ex.-P/24, P/26, P/28 85 P/30) to the Panchas were issued and inquest(s) (Ex.-P/25, P/27, P/29 8s P/31) were prepared and the dead bodies were sent for exam.inations were post-mortera. The postmortem. conducted by Dr. N.S. Chandel (PW-2). He noticed following injuries on the dead bodies of the deceased persons:- 2.4.1 Deceased-Mohani: (i) Incised wound of 6 x 3 cm x bone deep on the right scapular region, scapula was brokcn into 3 pieces; (ii) Contusion of 10 x 4 cm on the lower right portion of the back; Incised wound of 6 x 3 cm x bone deep on the (iii) occipital region having fracture of underlying bone; (iv) Lacerated wound of 3.5 x 2 cm x bone deep on the right parietal region; Lacerated wound of 10 x 3 cm x bone deep on (v) the right occipito-parietal region, underlying occipital bone was broken into several pieces, brain matter had come out; & (vi) Multiple wounds of teeth-bite (5 in number) on the upper portion of left foreann. On intemal examination, it was found that there were niultiple fractures over occipital and parietal bones. Brain ineinbrane has ruptured; brain matter has conie out, many blood clots were present on right and ^ \. Cr.Appls. No. 1416: 1417:1419: 1420;1421:1422;1423:1424: 1425 & 1426 of 1997^0" left occipital region. According to him injury no. (i) 85 (iii) were caused by sharp edged weapons and other injuries were caused by hard and rough weapons and teeth-bite. The injuries were ante-mortem and sufficient to cause death in ordinary course of nature. The cause of death was injuries to the skull and bram and fhe death was hoinicidal in nature. His postinortein report is Ex.-P/6.

2.4.2 Deceased- Raineshwar : (i) (u) Lacerated wound of 6 x 4 cra x bone deep on the left occipital region; Incised wound of 5 x 3 cin x bone deep on the right parietal region, underlying bone was the brain inatter broken into inany pieces, has come out; (ui) Lacerated wound of3x 2 x 2 cm on the left parietal region; (iv) Lobe of right ear-pinna was completely cut; (v) There was swelling of 10 x 8 cin around the right eye, the eye was blackish; (vi) Abrasion of 6 x 5 cm on the right portion of back;8s (vii) Abrasion of 10 x 1 cm on the right thigh. On intemal examination, it was found that blood clots were present on right parietal and occipital regions; there were inultiple fractures on right parietal and occipital bones; some pieces of bones have pierced into brain tissue; right parietal and occipital lobes of the brain were ruptured. All the injuries were ante-mortem. Injiu-y no. (i), (iii), (iv), (v), (vi) 85 (vu) were caused by hard and rough object and injury no. (ii) was caused by sharp edged weapon. The cause of death was injuiy to the Cr.ApDls.No. 1416:1417:1419:1420: 1421:1422; 1423:1424:1425 & 1426ofl997/^ 10 skuU and brain and death was homicidal in nature. His postinortein report is Ex.-P/7.

2.4.3 (i) Deceased- Adhindas : SwelUng of 6 x 4 cm on the right portion of forehead, right eye blackish; SwelUng of 8 x 3 cin on the right forearm; (ii) (iii) Swelling of 5.5 x 2 cm on the left foreann; (iv) (v) Swelling of 12 x 2 cm on the lower portion of right leg; Swelling of 16 x 2 cra on the right portion of chest; (vi) Swelling on the right portion of chest at the position of 3rd, 4th, 5th 85 6th ribs, on pressing it was appearing with the ribs were broken; (vii) Lacerated wound of5x 2 x 2 cm near left eye- brow; (viii) Left ear-pinna was torn; 85 (ix) Lacerated wound of4x 2 x 2 cm on the left occipital region. On internal exainination, blood clots were found on temporal parietal and occipital regions, brain meinbrane was reddish, blood clots were found over the brain membrane; there were fractures over 3rd & 6th ribs; a piece of rib has broken and pierced into left lung; thoracic cavity was full of blood; trachea was also full of blood. AU the injuries were ante-raortein caused by hard and rough object. They were siifficient to cause death in ordinary course of nature. The cause of death was injuries to the brain and lung and the death was homicidal in nature. His posfa-nortem report is Ex.-P/S. \ Cr.Appls.No. 1416:1417; 1419; 1420: 1421:1422:1423:1424; 1425 & 1426ofl99'fy^j /•' 11

2.4.4 Deceased- Fatte : (i) Swelling over the right forearm. It was appearing that there were fractures over the bones; (ii) Abrasion of 12 x 2 cin on the left portion of back; (iii) Left ear-pinna was tom, the ear passage was fuU of blood; (iv) Incised wound of 4.5 x 3 cm x bone deep on the occipital region, there was fracture on the underlying bone; 8s (v) Incised wounds of 8 x 3 cm x bone deep on the left parietal region, there was fracture on the underlying bone. On intemal exaraination, it was found that there was sub-dural haemorrhage in the cerebral region; there were fractures over the right parietal and occipital bones; the injuries were ante-inortem.; injury no. (i), (ii) 8s (iii) were caused by hard and blunt object and rnjury (iv) & (v) were caused by sharp edged object. These no. to cause death in ordinary injuries were sufEcient course of nature. The cause of death was injury to the skuU and brain and the death was homicidal in nature. His postmortem report is Ex.-P/9.

2.5 Injured persons were also sent for their medical examinations. Following are the injuries sustained by the injiired persons:- Cr.Aools. No. 1416: 1417:1419: 1420:1421;1422;1423;1424; 1425 & 1426 \p/ 12

2.5.1 (i) Injured-DUip (PW-81; Incised wound ofll x 3 x3 cm over back part of right shoulder joint, margins clean cut and regular. The above injury was caused by hard and sharp cutting object. His MLC report is Ex.-P/S. He was advised for X-ray examination. On X-ray examination, it was found fhat there was corresponding fracture on acroinian process. His X-ray report is Ex.-P/61. He was admitted in the hospital from 9.6.1992 and was discharged on 21.6.1992. Discharge ticket is Ex.-P/63.

2.5.2 Injured- Padum (PW-151: (i) Incised wound of 5 x VsxVs cm on teinporo- parietal area; Swelling and tendemess over left foreann; swelling and tendemess over (ii) (iii) Pain, forearm, (iv) Abrasion over right side of elbow; 85 (v) Abrasions over both sides of right knee. On X-ray examination, it was found that there was a fracture over his left ulna. X-ray report is Ex.-P/62.

2.5.3 (i) Iniured-Satruehan (PW-141: Incised woitnd of 15x 5 x5 cm on the left portion of back and back portion of left forearm, margins regular, red in colour. It was simple injury caused by sharp edged weapon. His MLC report is Ex.-P/1.

2.5.4 (i) Injured- Mani Ram (PW-41: Incised wound of5 x 8 x8 cm (bone deep) on the left portioh of skull, margins regular, red in colour; 13 Cr.ADpls.No. 1416:1417:1419; 1420: 1421:1422:1423; 1424:1425 & 1426ofl99r/w (ii) Abrasion of 3 x 1 cin on the left patella, read in colour; (iii) Incised wound of 1 x 5x5 cra on the upper pordon of left leg, red in colour; SE (iv) Abrasion of .8 x .8 cni on the iniddle of the nose, red in colour. Injury no. (i) 8s (iii) were caused by sharp edged weapon and uijury no. (ii) and (iv) were caused by hard and rough object. AU the injuries were siinple injuries. His MLC report is Ex.-P/2.

2.5.5 (i) Injured- Roopchand (PW-251: Incised wound on the back portion of left shoulder joint, margins regular, red in colour; blood was coming out. The. injury was caused by sharp edged weapon. X- ray examination was advised. Cut injuries were found over superior aspect of left shoulder and articular surface of head of humorous. He was admitted in the from 9.6.1992 to 21.7.1992. Surgeiy was hospital performed. Discharge ticket is Ex.-P/64 and bed-head- ticket is Ex.-P/65.

2.5.6 Injured- Moolchandra (PW-6): (i) Lacerated wound of3x .8 x .5 cm on the left portion of skull, margins regular, colour. red in It was simple injury caused by hard and rough object. His MLC report is Ex.-P/3.

2.5.7 Injured- ReshamlPW-71: (i) Two bruises of 7 x 2.7 cm and 5 x 2.5 cm on the back portion of right side of chest; & Cr.Appls.No. 1416; 1417:1419:1420; 1421; 1422; 1423; 1424:1425 & 1426 of 1997 14 /Q5 /" (ii) Abrasion of 3.5 x 2 cra on the back portion of right forearm, red in colour. Both injuries were siinple injuries caused by hard and rough object. His MLC report is Ex.-P/4.

2.6 The case of the prosecution was based on 16 eye- witnesses, including the above rnjured witnesses as also the police personnels who were also injured. The leamed Sessions Judge relied on the testimonies of these witnesses and held that it was proved beyond all reasonable doubts that the accused persons had fonned an unlawful assembly and had conrmitted the above ofFences in furtherance of the common objects of the said asserably. The accused persons, convicted and sentenced as above. thus, were (3) Accused- Babudas (A-3) had also ffled a separate appeal. However, he died during the pendency of the appeal, therefore, his appeal has abated. Thus, the remaming 10 accused persons are before us. (4) Mr. Abhay Tiwari, leamed coiinsel appearing on behalf of the appeUants, has argued that formation of an unlawful assembly and the appellants being members thereof was not proved; common object(s) were also not proved; the witnesses were not reliable; and the appeUants have been falsely iinplicated. Altematively, he argued that it was a case of free- fight. Complamant party was aggressor and the accused persons inflicted injuries in right of private defence. J Cr.Appls. No. 1416: 1417: 1419: 1420:1421:1422:1423:1424: 1425 & 1426 of 1997 / \^ \M/ / On the other hand, Mr. Sudhir Bajpai, leamed Dy. Govt. Advocate appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. (6) We have heard counsel for the parties. (7) Let us firstly remind the principles relating to "Unlawful Assembly" & "Coimnon Object(s)". (8) What has to be proved against a person who is alleged to be a meinber of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any asserably an unlawful assembly, intentionally joins that asseinbly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the conunon objects specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to detennine in such a case is whefher the assembly consisted of five or inore persons and whether the said persons entertained one or more of the conunon objects as specified J Cr.Apols.No. 1416: 1417: 1419; 1420; 1421:1422; 1423:1424; 1425_&_1426ofl997" 16 /a.o- by Section 141. While detemiining this question, it becoines relevant to consider whether the assembly consisted of soine persons who were merely passive witiiesses and had joined the asseinbly as a matter of idle curiosity without intending to entertain the common object of the assembly. The two ingredients of Section 149 are (i) commission of offence by rnembers of unlawfal assembly; and (ii) such offence inust be in prosecution of coinmon object of that asseinbly, or must be such as ineinbers of that assembly knew it to be likely to be comraitted. For detennining coinmon object the conduct of each member of unlawful assembly before and at the time of attack is relevant consideration; object of unlawful assembly is a question of fact which has to be determined keeping in view nature of assembly, amis carried by ineinbers, and behaviour of members at or near scene of incident. The cominon object does not require a prior concert and a common ineeting of ininds before attack. It is enough if each member has same object and all act in assenibly to achieve that object. Comraon object has to be ascertamed from acts and language of members and froin consideration of all surrounding circumstances. For detennination of common object, conduct of each member of unlawful assembly, before and at the time of attack and motive of criine are sorae of the relevant considerations. The time of \ Cr.ApDls. No. 1416:1417: 1419: 1420:1421:1422:1423:1424: 1425 & 1426 ^ 17 fonning unlawful intent is not material because it is possible that an asseinbly, which is lawful to begin with, subsequently becomes unlawful. Lastly, is not even expected of prosecution to assign particular or independent roles played by each accused once it is proved they were members of unlawful assembly and had assaulted deceased resulting in death (Vide: Mdsalti -Vs- State of U.P.. AIR 1965 SC 202, Pandurana Chandrakant Mhatre and ^thers^-Vs- iState of Mdharcishtra, {2009] 10 SCC 773; Sikandar Sfn.gh & Qrs. -Vs- State of Bihar. 2010 AER SCW 4426 and Dhamidhar^ -Vs- State of Uttar Pradesh and Others & other connected appeals. 12010} 7 SCC 759). (9) Now we shall examine the case of the appellants. (10) The first set of evidence was of injured eye-witnesses namely- Padum (PW-15), DiUp Kumar (PW-8), Satmghan (PW-14), Mani Ram (PW-4), Roopchand (PW-25), Moolchandra (PW-6) and Resham (PW-7). (11) Padum (PW-15) deposed that "Accused- Awadh Ram (A- 1) had committed mischief by fire in the Pairawat (paddy- straw) of deceased- Fatte. A report was lodged in police station Lalpur. On this report, the police party had visited their viUage. On the date of the present incident, the police Cr.Aools. No. 1416:1417:1419: 1420:1421:1422:1423:1424: 1425 &J426 ofl997 18 party including Thanedar Tiwari (PW-21) had called theni near Jaitkham. Rameshwar, Fatte, Mohani & Adhindas (4 deceased persons), Bawachha, Roopchand (PW-25), Dilip (PW-8), Mani Ram (PW-4), Yashkumar, he himself and maiiy other (about 16 persons) were present there. At that time, Awadh Ram (A-l) and Satprasad (A-7) came there. Satprasad (A-7) was holding a tabbal and Awadh Ram (A-l) was holding a lathi. They attacked over thein. Other accused persons belonging to their party namely- Khilawan (A-6), Phoolchand (A-8), Ramsahayak (A-5), Bhanu (A-2), Babudas (A-3), Bhagrai (A-11), Bhagbali (A-4), Lakhan (A-10) and Satrughan (A-9) also came there with lathi. Firstly Awadh Ram (A-l) assaulted Moolchandra (PW-6) by lathi. Moolchandra fell down. Thereafter Awadh Ram (A-l) assaulted his father, Mohani (deceased), by lathi. Satprasad (A-7) assaulted him by tabbal and Bhanu (A-2) assaulted him by lathi. His father fell down receiving their injuries. Then Satrughan (A-9), Khilawan (A-6), Bhanu (A-2) and other accused persons attacked over Fatte (deceased). He also fell down on account of assault. Raraeshwar (deceased) was also attacked by Phoolchand (A-8), Ramsahayak (A-5), Babudas (A-3), Satrughan (A-9) etc. by lathi. He had also fell down after receiving the injuries. Adhindas (deceased) was assaulted by Babudas (A-3), Satprasad (A-7), KhUawan (A-6), Cr.Aoris. No. 1416:1417:1419: 1420:1421:1422:1423:1424; 1425_& 1426 of 1997 19 r^) Ramsahayak (A-5) by lathi and tabbal. He also fell down on account of injuries sustained by him. After assaulting the above deceased persons, the accused persons had assaulted him and they had also assaulted Dilip (PW-8), Roopchand (PW-25) and Adhindas (deceased). While the accused persons were assaulting them, the poUce officers present there, fired in the air. Mohani, Adhindas, Raineshwar and Fatte .(4 deceased persons) had died instantaneously. When he wanted to run away, he was stopped by the police officers". Padura (PW-15) was formally cross-examined by the defence. Only 1 question was asked to him which he (Padum) adnaitted that on the same day Kejaha was also murdered and he was an accused in the said case. (12) The evidence of Padiun (PW-15) was duly corroborated by the evidence of other mjured witnesses namely- Dilip Kumar (PW-8), Safanghan (PW-14), Mani Ram (PW-4), Roopchand (PW-25), Moolchandra (PW-6) and Resham (PW- 7), who deposed in siinilar fashion. Nothing inaterial could be elicited in the cross examinations of these witnesses, on which, either their testimonies may be discarded or it may be said that they were falsely iinplicating the accused persons in the said incident. These witnesses were injured witnesses, therefore, their presence at the place of occurrence cannot be doubted. They have given details regarding manner of assault \ > Cr.ApDls.No. 1416:1417:1419:1420: 1421:1422:1423:1424: 1425 & 1426 of 1997 20 ^ given to the deceased and injured persons. They have also taken specific naines of the accused persons, who, in fact, had assaulted thein as also the deceased persons. Thus their evidence assume unportance (Vide: Balrafe Alias Trimbak Vs- State of Maharashtra, (2010) 6 SCC 673 and Abdul Sa.yeed -Vs- State ofMadhi/a Prddesh & other connected matters, (2010) 10 SCC 259}. Mr. Tiwari also could not point out any infimuly in the evidence of these witnesses. (13) Their evidence was further corroborated by the postinortein reports of 4 deceased persons as also MLC reports of these witnesses and the evidence of Dr. Anil Kumar Gupta (PW-1) and Dr. N.S. Chandel (PW-2).who found above injuries of their persons as also on the dead bodies of the deceased persons. (14) Not only this, their evidence was also corroborated by the evidence of 3 police ofGcers, which was the second set of eye-witnesses, which we shall now discuss. (15) 8.1., Sanjay Tiwari (PW-21) has deposed that on the fateful day, he was present in the vUlage for investigation of the mischief case. He was told that persons belonging to complainant party of this case have committed murder of Kejaha Satnami in village Bandhwa. He sent Constable- r Cr.Appls. No. 1416: 1417: 1419: 1420:1421:1422; 1423:1424: 1425 & 1426 of 1997 (^ 21 Rampratap to village Bandhwa. Along with the remaming staffs, he came to village Dayalpur. Bhanu (A-2) S/o Kejaha niet hina near Jaitkham. Bhanu (A-2) lodged a report of death of his father which he recorded in Dehatinalishi Then, he went to the house of Adhindas and Melaram, where he met Adhindas, Moolchandra, Fatte, Rameshwar, Mohani, Roopchand, Dilip ete. He called thera near Jaitkham. for interrogation. When he was interrogating them, accused persons namely- Awadh Ram (A-l) and Satprasad (A-7) came there froin the front side and other accused persons naniely- Bhanu (A-2), Ramsahayak (A-5), Babudas (A-3), Satrughan (A-9), Phoolchand (A-8), Bhagrai (A-ll), Bhagbali (A-4) etc. came from other side. They were anned with lathi and tabbal. They attacked over Moolchandra (PW-6) etc. When he tried to intervene, they also attacked over police party. The police persons accompanying hun sustained injuries. After attack over the above persons when they were trying to assault Ramadhar, he and A.S.I. Pandey fired 2 rounds in the air from. their service revolver. Wlien the accused persons did not stop, they again fired 2 rounds in the au-. (16) SimUar is the evidence of A.S.I., Chotelal Pandey (PW- 20) and Constable, Virendra Kumar (PW-24). -\ ^ CrAppls. No. 1416:1417: 1419:1420:1421:1422:1423: 1424:1425 & 1426 of 1997 (^)^) 22 These police witnesses were also put to cross- examination by the defence, but nothing material could be brought in their cross-exainmations. We note that for the mjuries sustained by the poUce persons a separate offence was registered against the accused persons which became the subject inatter of Sessions Trial No. 49/93 in which also the accused persons were convicted by fhe Sessions Court. (18) The 3rd set ofevidence was ofthe eye-witnesses who did not receive any injury and witonessed fhe incident from a very short distance. They were Champa Bai (PW-10), Ramadhar Chakradhari (PW-5), LUva (PW-9) and Santram Kotwar (PW- 12). (19) Champa Bai (PW-10) deposed that "On the fateful day, she was sitting near the place of incident. Adhindas, Fatte, Rameshwar and Mohani (4 deceased persons) were present there. The accused persons had attacked over them by lathi and tabbal. Accused- Awadh Ram (A-l) and Satprasad (A-7) had open the assault and thereafter other accused had also assaulted. Police personnels were also present there. They were also assaulted by the accused persons. She had seen the incident from a very short distance . Champa Bai (PW-10) is wife of Moolchandra (PW-6). In cross-examination, she admitted that Moolchandra (PW-6) was an accused in case of / CrAonls. No. 1416:1417:1419: 1420:1421:1422:1423:1424: 1425 & 1426 of 1997't^/ 23 murder of Kejaha Satnami. Her evidence was corroborated by the evidence of Ramadhar Chakradhari (PW-5), Lilva (PW-9) and Santram Kotwar (PW-12). (20) In appreciation of the entire evidence on record, we fiiid there was a parti-bandi in these villages (village- Dayalpur and Bandhwa). The accused persons were inembers of the party belonging to Kejaha Satnami (who had earlier died) and the deceased(s) and injured persons were raembers of the party belonging to Adhindas (deceased). In the moming at about 9.30 a.na. Kejaha Satnami was niurdered and ui retaliation thereof, the accused persons attacked over the deceased(s) and injured persons at about 11.45 a.m. when they were called for interrogation by the police near Jaitkham of village Dayalpur. Accused persons were armed with lathi and tabbal. They were 11 in number. They, all of a sudden, reached to the place of occurrence and attacked over the persons of deceased(s) party by the above deadly weapons and 4 persons belonging to deceased(s) party were inurdered and 7 persons were injured. The witnesses have taken the names of all the accused persons. When the police party toned to intervene, the accused persons had attacked over the members of the police party, who also sustained injuries. The police party had to fire many rounds in fhe air, but even after v that the accused persons did not stop the assault and caused Cr.Aopls.No. 1416:1417:1419:1420: 1421; 1422:1423:1424:1425 & 1426ofl997/"~"~N, "i^ 24 above injuries to the injured and the deceased persons. The above conduct of the accused persons would show that they were the ineinbers of unlawful assenibly and they had conunitted inurdered of 4 deceased persons and caused injuries to 7 injured persons in fuirtherance of the common object(s) of the said asserably. (21) Mr. Tiwari has argued that it was a case of free-fight. The above argument cannot be accepted in view of the fact that none of the accused persons sustained any injury in the said incident. It was tried to canvass that as the complainant party of this case had attacked over Kejaha Satiiami (deceased), the accused party had also attacked over them in right of private defence. The above argument, in light of the prevaiUng circumstances, cannot be accepted because both the incidents took place at two different places and there was a long time gap. The first incident took place in village Bandhwa at about 9.30 a.m., whereas, the present incident took place in village Dayalpur at about 11.45 a.in. It appears that after the Grst incident, fhe accused persons, with a view to take revenge, formed an unlawful assembly, armed theinselves with deadly weapons and thereafter attacked over the persons belonging to the deceased(s) party in a planned manner which was in furtherance oftheir common object(s). / Cr.Aopls.No. 1416:1417:1419:1420:1421: 1422:1423:1424:1425 & 1426 ot 1997/1 25 (22) We are of the view that the leamed Sessions Judge was fully justified in convicting the accused persons under the aforenaentioned Sections ofIPC. (23) For the foregoing reasons, we do not find any substance in these appeals. The appeals are liable to be disinissed and are hereby dismissed. Sd/- SunU Kumar Sinha Judge • Sd/- Radhe Sliyam Sharma Judge Cr-Appls. No. 1416:1417: 1419; 1420:1421;1422:1423:1424; 1425 & 1426 of 199 26 HEADLINE Principles relating to fonnation of Unlawful Assembly and Comnion Object - Discussed. f^lR^ uPTR' ^ ^WW dc;^^ ^ WrRRT Rl^lil - f^RT | Sd/- (R.K. Vatti) Private Secretary